United States v. Davenport , 73 M.J. 373 ( 2014 )

UNITED STATES, Appellee
v.
Calvin J. DAVENPORT, Sergeant First Class
U.S. Army, Appellant
No. 13-0573
Crim. App. No. 20081102
United States Court of Appeals for the Armed Forces
Argued April 28, 2014
Decided August 11, 2014
RYAN, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion.
Counsel
For Appellant: Captain Brian D. Andes (argued); Colonel Kevin
Boyle, Lieutenant Colonel Peter Kageleiry Jr., and Major Vincent
T. Shuler (on brief); Major Jacob D. Bashore, Captain Jack D.
Einhorn, and Captain A. Jason Nef.
For Appellee: Captain Carrie L. Ward (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Kenneth
W. Borgnino (on brief).
Military Judges: Jeffery R. Nance, Edward J. O’Brien, and Mark
A. Bridges
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Davenport, 13-0573/AR
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, a military judge sitting as a
general court-martial convicted Appellant of four specifications
of conspiracy, in violation of Article 81, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 881 (2012), seven
specifications of extortion, in violation of Article 127, UCMJ,
10 U.S.C. § 927 (2012), and two specifications of bribery, in
violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012). The
adjudged sentence provided for two years of confinement,
reduction to E-1, and a bad-conduct discharge. The convening
authority approved only one year of confinement, but otherwise
approved the adjudged sentence.
Before the United States Army Court of Criminal Appeals
(ACCA), Appellant argued that the omission of the testimony of a
Government merits witness -- Sergeant (SGT) MS -- rendered the
transcript nonverbatim and incomplete, preventing approval of
any sentence that included either confinement greater than six
months or a punitive discharge. United States v. Davenport, No.
ARMY 20081102, 2013 CCA LEXIS 361, at *9–*10, 2013 WL 1896277,
at *3 (Apr. 18, 2013). On October 31, 2011, the ACCA ordered a
post-trial hearing pursuant to United States v. DuBay, 17 C.M.A.
147, 37 C.M.R. 411 (1967), to provide an opportunity to
reconstruct the testimony of SGT MS. Id. at *10–*11, 2013 WL
1896277, at *3. On April 2, 2012, the DuBay hearing was
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conducted and the military judge made findings of fact
concerning SGT MS’s testimony. Id. at *11, 2013 WL 1896277, at
*3. Based on these findings, on April 18, 2013, the ACCA found
that the record in this case was “both substantially verbatim
and complete for appellate review purposes.” Id. at *15, 2013
WL 1896277, at *4.
We granted review of the following issue:
WHETHER THE OMISSION OF TESTIMONY FROM A TRIAL
TRANSCRIPT RENDERS THE TRANSCRIPT NON-VERBATIM AND
THEREFORE SUBJECT TO THE REMEDY IN [RULE FOR COURTS-
MARTIAL (R.C.M.)] 1103(f)(1) WHERE THE WITNESS’S
TESTIMONY IS ONLY RELEVANT TO AN OFFENSE OF WHICH
APPELLANT HAS BEEN ACQUITTED; OR, WHETHER SUCH
OMISSION SHOULD BE ADDRESSED UNDER R.C.M.
1103(b)(2)(A) (REQUIREMENT FOR A COMPLETE RECORD) AND
THUS TESTED FOR WHETHER THE PRESUMPTION OF PREJUDICE
HAS BEEN REBUTTED. SEE UNITED STATES v. GASKINS, 72
M.J. 225 (C.A.A.F. 2013); UNITED STATES v. HENRY, 53
M.J. 108 (C.A.A.F. 2000).
United States v. Davenport, 73 M.J. 200 (C.A.A.F. 2014)
(order granting review).
We hold that, under the facts of this case, the complete
omission of SGT MS’s testimony on the merits from the trial
transcript was a substantial omission that rendered the
transcript nonverbatim. Consequently, the convening authority
was limited to the remedies listed in R.C.M. 1103(f). The
decision of the ACCA is reversed.
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I. FACTS
On December 1, 2007, Appellant was assigned to a unit
headquartered on Forward Operating Base (FOB) Rustamiyah, Iraq.
During the latter part of December 2007 and the early part of
January 2008, Appellant, Command Sergeant Major (CSM) Ofelia
Webb, and First Sergeant (1SG) Patrick A. Faust, decided to open
and operate a hair salon, “Hair Zone,” and barbershop, “Razor
Edge,” on the FOB. The plan involved using locally acquired
property to furnish both the salon and barbershop and employing
Iraqi and third-country nationals to provide the hair care
services. Consistent with the plan, Mr. Hasseeb Muhammadatta
Khalil Al-Sawad, a local vendor, delivered an estimated
$4,680.00 of property to the businesses. Al-Sawad believed he
was providing the property on credit with the expectation that
Appellant would pay him at a later date. After delivery,
Appellant, commenting on an unrelated contract that Al-Sawad
obtained, in part, through Appellant’s efforts, confronted Al-
Sawad, along with 1SG Faust, and told him that because of
Appellant’s efforts, he would not pay Al-Sawad for the property.
Appellant then directed Al-Sawad to alter a receipt for the
property and note that the payment was made in full. Al-Sawad
did so because he believed both that Appellant and 1SG Faust
were “big people” of “high rank” and, based on statements from
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United States v. Davenport, 13-0573/AR
Appellant, that he would be permanently removed from FOB
Rustamiyah if he did not comply.
Appellant and his partners also required each employee at
the barbershop and hair salon to pay them $300.00 a month, as a
condition of employment, and threatened loss of employment and
removal from the FOB if the employee refused. Additionally,
Appellant and 1SG Faust also used their position of power to
affect cable and Internet services on the FOB by negotiating
with Netgate, a cable and Internet provider, for the company to
pay them $30,000.00 in exchange for operating on the FOB.
Appellant’s trial ended on December 11, 2008. The trial
counsel had a duty to review the record for errors before
authentication. See R.C.M. 1103(i)(1)(A). Notwithstanding the
military judge’s and trial counsel’s review, the record was
authenticated on June 2, 2009; missing from the record was the
entire testimony on the merits of SGT MS, a Government witness.
The record indicates only that the Government called SGT MS as a
witness. Although the court reporter recorded the testimony, at
some point after the case concluded the computer on which the
court reporter recorded the testimony was reimaged, preventing
recovery of the original recorded data. The testimony’s
omission from the record was first discovered by appellate
defense counsel on appeal to the ACCA. On July 30, 2010,
Appellant asserted, inter alia, that the omission of SGT MS’s
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United States v. Davenport, 13-0573/AR
testimony from the record rendered the transcript incomplete
under Article 54(c)(1)(A), UCMJ, 10 U.S.C. § 854(c)(1)(A)
(2012), and nonverbatim under R.C.M. 1103(b)(2)(B).
On October 31, 2011, the ACCA ordered a post-trial DuBay
hearing to provide the Government an opportunity to reconstruct
SGT MS’s testimony. The DuBay hearing occurred on April 2,
2012. While SGT MS testified at the DuBay hearing, he could not
recall certain details of his testimony, and acknowledged only
that he might recall the information if he reheard the specific
questions asked at the court-martial again at the DuBay hearing.
Even then his memory was imperfect, as he could not recall if
had been asked about testifying under a grant of immunity at
trial. 1 After the DuBay hearing, the military judge made several
findings of fact, including:
The full substance and extent of [SGT MS’s]
testimony is not altogether clear. With the exception
of the military judge, no witnesses testifying during
this hearing maintained any notes related to this
trial. . . .
. . . [SGT MS]’s testimony consisted of a direct
examination[,] . . . a cross-examination by one of the
appellant’s defense counsel, and a re-direct
examination. . . .
[SGT MS]’s testimony mostly related to the “money
laundering” charges contained in Additional Charge IV,
of which the appellant was found not guilty. . . .
1
The trial military judge, however, testified that his trial
notes indicated that when the Government asked, SGT MS admitted
he had been granted immunity.
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United States v. Davenport, 13-0573/AR
[SGT MS] was also asked whether he was aware of
any threats made by the appellant and whether the
appellant had ever taken money or property from “local
nationals.” [SGT MS] testified that he was not aware
of any such threats made by appellant or of any
property or money taken by the appellant from “local
nationals.”
. . . .
There is some evidence that objections were made
by the defense counsel during the testimony of [SGT
MS], but there is no evidence to establish what those
objections were.
II. ACCA DECISION
After considering the findings from Appellant’s DuBay
hearing, the ACCA found that “the government was unable to
obtain or adequately reconstruct the exact testimony of SGT MS.”
Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4.
Despite this fact, and in tension with the DuBay military
judge’s conclusion that the substance and extent of SGT MS’s
testimony was “not altogether clear” and that the testimony only
“mostly” related to two money laundering charges of which
Appellant was acquitted, the ACCA found that SGT MS “had no
information relevant to any offense of which Appellant was
convicted” and that his testimony “only related to the two money
laundering specifications of which appellant was acquitted.”
Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)
(footnote omitted). It reasoned from this that “‘not one fact
of substance or materiality to a legal or factual issue is
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United States v. Davenport, 13-0573/AR
missing from [appellant’s] transcript,’” id. at *14, 2013 WL
1896277, at *4 (alteration in original), and concluded that “the
record in appellant’s case [was] both substantially verbatim and
complete for appellate review purposes.” Id. at *15, 2013 WL
1896277, at *4.
III. DISCUSSION
A.
Whether a record is complete and a transcript is verbatim
are questions of law that this Court reviews de novo. Cf.
United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000). “The
requirement that a record of trial be complete and substantially
verbatim in order to uphold the validity of a verbatim record
sentence is one of jurisdictional proportion that cannot be
waived.” Id. Although “[a nonverbatim] transcript and an
incomplete record are separate and distinct errors under the
R.C.M., we think that distinction has been blurred based on
dicta” in various cases before this Court. United States v.
Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013).
“A verbatim transcript includes: all proceedings
including sidebar conferences, arguments of counsel, and rulings
and instructions by the military judge . . . .” R.C.M.
1103(b)(2)(B) Discussion. A verbatim transcript of all sessions
is required when:
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(i) Any part of the sentence adjudged exceeds six
months confinement, forfeiture of pay greater than
two-thirds pay per month, or any forfeiture of pay for
more than six months or other punishments that may be
adjudged by a special court-martial; or
(ii) A bad-conduct discharge has been adjudged.
R.C.M. 1103(b)(2)(B). Here, a verbatim transcript is required
because the military judge sentenced Appellant to two years of
confinement and a bad-conduct discharge. See R.C.M.
1103(b)(2)(B). By definition, if there is not a verbatim
transcript, there is also no “complete record.” R.C.M.
1103(b)(2)(D). However, while in the case of most incomplete
records prophylactic measures are not prescribed, and the
missing material or remedy for same are tested for prejudice,
where the record is incomplete because the transcript is not
verbatim, the procedures set forth in R.C.M. 1103(f) control.
Gaskins, 72 M.J. at 230-31; see also infra pp. 13-15.
In assessing either whether a record is complete or whether
a transcript is verbatim, the threshold question is “whether the
omitted material was ‘substantial,’ either qualitatively or
quantitatively.” United States v. Lashley, 14 M.J. 7, 9 (C.M.A.
1982). Cf. Gaskins, 72 M.J. at 229 (stating that a
“substantial” omission makes a record incomplete). The
transcript in this case omitted SGT MS’s entire testimony.
Thus, our focus is on the narrow threshold question whether the
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United States v. Davenport, 13-0573/AR
omission in the transcript was qualitatively or quantitatively
substantial, which would render it nonverbatim.
Despite the dictionary definition of the term “verbatim,”
transcripts need not be “[w]ord for word,” but must be
“‘substantially verbatim.’” Lashley, 14 M.J. at 8 (noting that
“literal compliance with this [verbatim] requirement is
impossible”). Logically, if R.C.M. 1103(b)(2)(B) required every
transcript to be word for word, “every record could be assailed
as deficient” because “[m]any, if not all, records fail to
record every word spoken at a hearing.” United States v.
Nelson, 3 C.M.A. 482, 486, 13 C.M.R. 38, 42 (1953). As such, a
transcript may be deemed “substantially verbatim” though it has
certain omissions. In contrast, omissions are qualitatively
substantial if the substance of the omitted material “related
directly to the sufficiency of the Government’s evidence on the
merits,” and “the testimony could not ordinarily have been
recalled with any degree of fidelity.” Lashley, 14 M.J. at 9.
Omissions are quantitatively substantial unless “the totality of
omissions . . . becomes so unimportant and so uninfluential when
viewed in the light of the whole record, that it approaches
nothingness.” Nelson, 3 C.M.A. at 487, 13 C.M.R. at 43.
The trial transcript from Appellant’s original court-
martial recites:
[Military Judge]: [Trial Counsel], what’s next?
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United States v. Davenport, 13-0573/AR
[Trial Counsel]: [SGT MS], sir.
[SGT MS], U.S. Army, was called as a witness for the
prosecution, was sworn and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
[The court-martial was called to order at 1717, 9
December 2008.} [sic]
[Military Judge]: The court is again called to order.
All parties present when the court recessed are again
present.
As evidenced here, the transcript entirely omitted the
testimony of SGT MS, a Government merits witness. The omission
of the testimony of an entire merits witness is almost
necessarily substantial where, as here, the content of the
testimony is equivocal even after attempts to reconstruct it at
a DuBay hearing. In this case the omission was substantial both
quantitatively, because the entire testimony was omitted, and
qualitatively, because the substance of the omitted testimony
presumably relates directly to the Government’s evidence on the
merits and could not be recalled with fidelity. See Lashley, 14
M.J. at 9. Cf. United States v. Stoffer, 53 M.J. 26, 27
(C.A.A.F. 2000) (omission of three exhibits presented during
sentencing was substantial because the exhibits presumably
related to the sentencing decision and the contents were not
identified in the record of trial).
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While the DuBay military judge’s findings stated that “[SGT
MS]’s testimony mostly related to the ‘money laundering’
charges . . . of which the appellant was found not guilty,” the
findings also acknowledged that “[t]he full substance and extent
of [SGT MS’s] testimony is not altogether clear.” Where, as
here, the Government was unable to obtain or adequately
reconstruct the testimony of SGT MS, we are hard pressed to
agree with the ACCA that we can be certain of what SGT MS
testified about. Moreover, we cannot accept that the testimony
only related to the money laundering charges of which Appellant
was acquitted, given that the DuBay military judge also found
that SGT MS “was also asked whether he was aware of any threats
made by the appellant and whether the appellant had ever taken
money or property from ‘local nationals,’” 2 -- information which
relates directly to the seven extortion specifications. On the
whole, the ACCA’s characterization of the DuBay military judge’s
equivocal findings is more definitive than the record warrants.
Deference is due to the DuBay military judge’s findings, but not
to the ACCA’s recharacterization of those findings.
The uncertain content of SGT MS’s testimony, including
several admissions that he could not remember his testimony at
2
When the DuBay military judge asked this question, SGT MS
responded, “‘To my recollection, I never saw him make threats or
anything. I never even heard anything about him making
threats.’”
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trial; his testimony that, in essence, he had to be asked the
right questions in order to jog his memory as to what he had
been asked about at trial; and his lack of memory with respect
to whether he had been asked about testifying under a grant of
immunity, is compounded by the DuBay military judge’s finding
that “[w]ith the exception of the military judge, no witnesses
testifying during this hearing maintained any notes related to
this trial.”
Furthermore, the findings merely offered a summary of the
substance of the testimony and the “[i]nclusion of the substance
of a portion of the record of proceedings dealing with material
matter is not a verbatim transcript of the record.” United
States v. Gray, 7 M.J. 296, 298 (C.M.A. 1979) (quoting United
States v. Sturdivant, 1 M.J. 256, 257 (C.M.A. 1976)). On
balance, the omission of SGT MS’s testimony was substantial and,
therefore, the transcript here was nonverbatim.
B.
Having concluded that the record is nonverbatim, it is
necessary to determine the appropriate remedy for the error.
Although it is true that the Manual for Courts-Martial, United
States (MCM), “does not limit the [ACCA’s] discretion to remedy
an error in compiling a complete record,” Gaskins, 72 M.J. at
230, when “a verbatim transcript cannot be prepared,” the
remedial options are limited and definitively circumscribed.
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United States v. Davenport, 13-0573/AR
See id. at 230–31; see also Edmond v. United States, 520 U.S.
651, 657 (1997) (“Ordinarily, where a specific provision
conflicts with a general one, the specific governs.”).
The MCM provides that, in the case of a nonverbatim
transcript:
[T]he convening authority may: (1) Approve only so
much of the sentence that could be adjudged by a
special court-martial, except that a bad-conduct
discharge, confinement for more than six months, or
forfeiture of two-thirds pay per month for more than
six months, may not be approved; or (2) Direct a
rehearing as to any offense of which the accused was
found guilty if the finding is supported by the
summary of the evidence contained in the record,
provided that the convening authority may not approve
any sentence imposed at such a rehearing more severe
than or in excess of that adjudged by the earlier
court-martial.
R.C.M. 1103(f). The plain language of R.C.M. 1103(f) indicates
there are only two options available to the convening authority
when a verbatim transcript cannot be prepared.
Because the DuBay hearing failed to reconstruct the
testimony of SGT MS, as the ACCA acknowledged, the ACCA erred in
holding that the transcript was nonetheless verbatim, and there
is no authority for us to apply the remedy for an incomplete
record to a nonverbatim transcript, as the Government urges.
Accordingly, given our conclusion that the transcript remained
nonverbatim after the DuBay hearing and that, in this context,
R.C.M. 1103(f) limits the remedies available to a rehearing or a
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United States v. Davenport, 13-0573/AR
modified sentence, we hold that it was error for the ACCA to
affirm Appellant’s sentence.
IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed and the case is remanded to the Judge
Advocate General for return to the Convening Authority for
action consistent with R.C.M. 1103(f).
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BAKER, Chief Judge (dissenting):
The facts in this case are novel and hopefully will not be
repeated. There is no doubt that the trial transcript failed to
include the entirety of Sergeant (SGT) MS’s testimony. The
question presented is whether this omission was so substantial
as to render the transcript nonverbatim and, if so, whether it
was subject to the sentencing limitations of Rule for Courts-
Martial (R.C.M.) 1103(f).
The majority concludes the “omission of the testimony of an
entire merits witness is almost necessarily substantial . . .
because the substance of the omitted testimony presumably
relates directly to the Government’s evidence on the merits”
and, on this basis, it concludes Appellant’s sentence must be
returned for action by the convening authority in accordance
with R.C.M. 1103(f)(1), thus reversing the decision of the CCA.
United States v. Davenport, __ M.J. __, __ (11-12, 15) (C.A.A.F.
2014). I disagree and therefore respectfully dissent.
A. R.C.M. 1103(b)(2)(B)
In determining whether a transcript is verbatim, the
threshold question is “whether the omitted material was
‘substantial,’ either qualitatively or quantitatively.” United
States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982). “Sometimes the
omissions are so substantial that the only remedy is a new
trial,” but at other times, “the omitted material is
United States v. Davenport, No. 13-0573/AR
sufficiently retrievable that a record can be salvaged and
pronounced ‘substantially verbatim’” as governed by “individual
factors.” Id. at 8–9 (citations omitted).
In the present case, the CCA ordered a DuBay hearing in
order to determine if the omitted testimony was sufficiently
retrievable such that the trial record could be salvaged and the
transcript deemed substantially verbatim. Findings of fact at a
DuBay hearing “will not be overturned unless they are clearly
erroneous or unsupported by the record.” United States v.
Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007). Based on testimony
from witnesses including the military judge, the DuBay military
judge determined that SGT MS’s testimony related primarily to
the money laundering charges of which Appellant was acquitted.
The CCA subsequently found the record in Appellant’s case to be
“substantially verbatim and complete for appellate review
purposes.” United States v. Davenport, No 20081102, 2013 CCA
LEXIS 361, at *15, 2013 WL 1896277, at *4 (Army Ct. Crim. App.
April 18, 2013) It further found that SGT MS “had no
information relevant to any offense of which [A]ppellant was
convicted.” 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4.
Thus, the CCA not only affirmed the DuBay hearing findings of
fact, but went beyond, and concluded that SGT MS’s testimony
related to money laundering charges of which Appellant was
ultimately acquitted.
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United States v. Davenport, No. 13-0573/AR
I agree with the CCA. First, R.C.M. 1103(b)(2)(B) states
that a verbatim transcript is required for “all sessions except
sessions closed for deliberations and voting.” R.C.M.
1103(b)(2)(B) (emphasis added). Of note, it does not say that a
verbatim transcript is required for all witnesses. In theory,
it is possible that a witness’s testimony could be qualitatively
or quantitatively unimportant, even if omitted in its entirety.
Here, the DuBay hearing determined that SGT MS’s testimony was
primarily directed at the money laundering charges of which
Appellant was ultimately acquitted. Therefore, I believe that
the missing testimony was not materially important to render the
transcript nonverbatim.
Second, there was no evidence put forth by Appellant that
the military judge’s findings of fact were “clearly erroneous”
nor is this addressed by the majority opinion. The Government
also notes that SGT MS’s testimony was “not referenced by the
trial counsel during argument on findings, and was also never
referenced by either party during the sentencing proceedings.”
Brief for Appellee at 16, United States Davenport, No. 13-0573
(C.A.A.F. Mar. 31, 2014).
Further, SGT MS did not testify in the parallel
coconspirator cases, underscoring that his testimony was limited
to the money laundering charges specific to Appellant. Thus,
while SGT MS’s testimony was omitted from the trial transcript,
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in my view this omission did not contain a “fact of substance or
materiality to a legal or factual issue.” United States v.
Nelson, 3 C.M.A. 482, 487, 13 C.M.R. 38, 43 (1953).
This case is distinguished from Lashley where this Court
found prejudice because the missing testimony related to
specific elements of an offense for which the appellant was
ultimately found guilty. But this is unlike the present case
where the missing testimony “mostly” related to money laundering
charges of which Appellant was acquitted. The majority attempts
to draw a link between SGT MS’s testimony and “the seven
extortion specifications,” effectively raising the specter that
the missing testimony could be linked to charges of which
Appellant was found guilty. Davenport, __ M.J. at __ (12). In
doing so, it correctly states that the DuBay military judge
asked SGT MS “whether he was aware of any threats made by the
[A]ppellant and whether the [A]ppellant had ever taken money or
property from ‘local nationals.’” Id. at __ (7). But, as
reflected in the colloquy below and acknowledged by the
majority, SGT MS answered this question in the negative; he did
not, in fact, have any information related to these questions.
Id. at __ (7). As the record indicates:
[TC]: Now, did any of the questioning -- did any of it go
into -- did any of your testimony go into Sergeant
Davenport receiving bribes?
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[MS]: No, they didn’t get in depth as far as asking me
anything of that nature, sir.
[TC]: Okay. Or, how about anything to do with him making
threats to local nationals?
[MS]: They did ask me that and I told them, “To my
recollection, I never saw him make threats or
anything. I never even heard anything about him
making threats.”
To be sure, the DuBay military judge recognized that “[t]he
full substance and extent of [SGT MS’s] testimony is not
altogether clear.” That being said, the military judge noted
what could be ascertained regarding SGT MS’s testimony, namely:
(1) SGT MS testified pursuant to a grant of immunity and his
testimony was “relatively short” as compared to other witnesses;
(2) SGT MS’s testimony “mostly related to the ‘money laundering’
charges . . . of which [A]ppellant was found not guilty”; (3)
SGT MS was not aware of any threats made by Appellant or of any
property or money taken from local nationals; (4) SGT MS denied
that a meeting took place with an individual named Haider; and
(5) that it was unclear whether SGT MS was asked about his
reduction in rank or the underlying reason for it. On that last
point, the DuBay military judge further noted that “[t]here is
no evidence to suggest that such questioning . . . could have
affected the rights of the appellant at trial.” And that, “even
if the defense counsel was unable to cross-exam [SGT MS] about
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United States v. Davenport, No. 13-0573/AR
the reason for his reduction in rank, there could have been no
prejudicial effect on the rights of the appellant at trial.”
Based on these findings, the CCA determined not only that
it was clear that “SGT MS’s testimony was on the merits and only
related to the two money laundering specifications of which
[A]ppellant was acquitted,” but also that SGT MS “had no
information relevant to any offense of which [A]ppellant was
convicted.” 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4
(footnotes omitted). Thus, the DuBay military judge’s findings
were not clearly erroneous and the CCA did not err in its
characterization of the findings. As a result, on the unusual
facts of this case, I would conclude the omission was not
qualitatively substantial and did not prejudice the Appellant.
B. R.C.M. 1103(f)
As a distinct point, this case raises an anomaly with
respect to the application of R.C.M. 1103(f). The majority
returns the case to the convening authority for the sentence
limiting remedy under R.C.M. 1103(f) which comes into effect
“[i]f, because of loss of recordings or notes, or other reasons,
a verbatim transcript cannot be prepared.” R.C.M. 1103(f).
This rule proposes two remedies for nonverbatim transcripts.
R.C.M. 1103(f)(1) states the convening authority may “[a]pprove
only so much of the sentence . . . except that a bad-conduct
discharge, confinement for more than six months, or forfeiture
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of two-thirds pay per month for more than six months, may not be
approved.” R.C.M. 1103(f)(2) states the convening authority may
also “[d]irect a rehearing as to any offense of which the
accused was found guilty if the finding is supported by the
summary of the evidence contained in the record.” R.C.M.
1103(f)(2) (emphasis added).
R.C.M. 1103(f)(2) authorizes a rehearing only for those
offenses for which the accused was found guilty. But R.C.M.
1103(f)(1) -- which allows the accused to receive a sentence
reduction -- does not. This creates an absurd result.
Specifically, this allows a sentence reduction in a case where
the summarized evidence goes only to an offense for which the
accused was found not guilty, yet does not allow a rehearing in
the same instance (obviously double jeopardy would not permit a
rehearing on a matter for which the accused was acquitted).
This makes no sense and surely was not the intent of the
drafters. Logic and statutory construction principles --
namely, that one can derive the meaning of an ambiguous
construction in the context of the words or phrases surrounding
it -- would suggest that R.C.M. 1103(f)(1) is similarly
qualified to any offense of which the accused was found guilty. 1
If that were the case, then the application of the sentence
1
The statutory construction principle of noscitur a sociis
essentially means “it is known by the company it keeps.”
7
United States v. Davenport, No. 13-0573/AR
limiting provision of R.C.M. 1103(f)(1) would be invalid because
in my view the summary of evidence from SGT MS’s testimony did
not relate to an offense of which Appellant was found guilty.
Therefore, I do not believe the missing testimony was
sufficiently substantial to render the transcript nonverbatim
nor do I believe that the sentence limiting provision of R.C.M.
1103(f)(1) applies towards offenses of which the accused was
found not guilty. Accordingly, I respectfully dissent.
8